Olmstead Planning Committee
June 7, 2012
Federal Statutes on Safety & Risk
I. Introduction
People with disabilities frequently are confronted with barriers to full participation in the
community and employment caused by unfounded myths, fears and stereotypes concerning
disease and disability. Exclusion of persons with HIV/AIDS and persons with chronic mental
illness are common. Avoiding discrimination due to irrational fear while excluding persons
whose disability or disease actually poses potential harm to others has required the creation of a
health and safety standard in disability rights law which attempts to strike a balance between
these two legitimate concerns . Persons with disabilities who would pose a “direct threat to
others” may be excluded from many public and private entities without violating the law. As will
be described more fully below, the term “direct threat” means proof that a person, because of
their disability, would pose a significant risk of substantial harm to others which cannot be
acceptably ameliorated by some form of reasonable accommodation which does not cause undue
hardship. Proof that a “direct threat” actually exists requires an individualized inquiry based
upon the most current medical information or objective facts and must take into account the
nature and severity of the harm and the probability that the harm will occur, among other factors.
The “direct threat”, health and safety defense is found in the employment, public entity and
public accommodations sections of the ADA and its implementing regulations. It also is in the
Fair Housing Amendments Act of 1988 which prohibits disability discrimination in multi-family
housing and in the regulations implementing the air Carriers Access Act, which prohibits
disability discrimination against qualified air travelers with disabilities. Because of its
appearance in all of the major federal disability rights laws, It is fair to conclude that both the
concept and requirements of the “direct threat” standard form one of the cornerstones of
disability rights protections for persons with disabilities.
Section II will provide the primary statutory and regulatory authority for the “direct threat”
standard under various federal rights laws. Section III will explain the many elements of direct
threat based upon the foregoing law and will discuss some of the conflicting case law in this
area.
Should the “direct threat” health and safety limitations be incorporated into Minnesota’s
Olmstead Plan?What about our state law’s protections for “vulnerable adults? Restrictions on a
disabled person’s activities and living arrangements based upon state health and safety law
might, in some circumstances, violate the federal direct threat standard. Federal law trumps
conflicting state law. There may be reluctance among members of the Olmstead Planning
Committee that “direct threat” limitations may not adequately protect “vulnerable adults” as
required by state licensing laws, for example. Nothing in either the recommended Olmstead
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Plan or in the final Plan adopted by DHS will affect in any way existing rights and obligations
under federal or state law. Nonetheless, the Olmstead Plan should apply the ADA’s “direct
threat” standard as established by the provisions applicable to state and local governments and
private social service agencies because the Plan we are called upon to create is mandated by the
ADA and the Olmstead Supreme Court decision interpreting Title II the ADA and its regulations
which expressly contain the “direct threat” provision for health and safety risks.
II. Primary statutory, Regulatory and Case Law Authorities for Direct Threat
Section 504 of the Rehabilitation Act of 1973
Section 504, in part prohibits discrimination against an otherwise qualified individual with a
disability in any program or activity (such as state and local governments, hospitals, schools,
etc.) that receives federal financial assistance. 29 U.S.C. § 794. Congress modeled many of the
ADA’s concepts and requirements upon § 504, its implementing regulations and case law. For
example, the ADA expressly prohibits federal implementing regulations to impose a “lesser
standard” than the standard contained under the Rehabilitation Act and its regulations. 42
U.S.C. § 12201(a). With regard to ADA provisions expressly applicable to public entities,
moreover, the Attorney general was to issue regulations consistent with the disability rights
provisions of the Rehabilitation Act. 42 U.S.C. § 12134(b). Ultimately, the definitions section
of the Rehabilitation Act was amended to apply the “direct threat standard. 29 U.S.C. §
705(20)(d).
The concept of “direct threat” was introduced into § 504 through the U.S. Supreme Court
decision in School board of Nassau County, Florida v. Arline,480 U.S. 273 (1987. Arline was a
public school teacher who was dismissed from her job because she had tuberculosis. The
Supreme Court noted in reviewing her termination under § 504, that “Congress acknowledged
that society's accumulated myths and fears about disability and disease are as handicapping as
are the physical limitations that flow from actual impairment.” Arline, 480 U.S. at 284. The
Court also concluded that § 504 “carefully structured to replace such reflexive reactions to
actual or perceived handicaps with actions based on reasoned and medically sound judgment.”
Arline, 480 U.S. at 284-285. The Court concluded that Arline would not be qualified to be a
teacher if she posed a “significant risk” of transmitting tuberculosis to others and the risk could
not be eliminated by a reasonable accommodation. Arline, 480 U.S. at 287 & n. 17. The Court
required that there be an “individualized inquiry” Arline, 480 U.S. at287. The Court adopted a
four factor test recommended by the American Medical Association for determining whether a
significant risk was presented by a person with a contagious disease. The individualized inquiry,
therefore, should include:
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"[findings of] facts, based on reasonable medical judgments given the state of
medical knowledge, about (a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long is the carrier infectious), (c)
the severity of the risk (what is the potential harm to third parties) and (d) the
probabilities the disease will be transmitted and will cause varying degrees of
harm."
Arline, 480 U.S. at 288.Upon remand, the federal district court applied the
Supreme Court’s “direct threat” analyitical framework and concluded that
because Arline tuberculosis cultures had been negative and the possibility of
infection was “extremely rare,” the school board could either reinstate her or pay
her salary until she retired. Arline v. School board of Nassau County, Florida, 692
F.Supp. 1286 (M.D. Fla. 1988). The legislative history of the ADA made clear
that the Arline decision and its discussion of significant risk was to be imported
into the ADA.
Americans with Disabilities Act Direct Threat Provisions
Title I (Employment)
The EEOC’s “direct threat”regulations are unique among all of the other agencies “direct threat”
regulatory provisions in that the EEOC permits risk to self as well as risk to others as a basis for
exclusion. Only “Risk to others”is contained in title I’s statutory language. Inclusion of “risk to
self” is a recognition of potential employer liability under the federal Occupational Safety and
health Act if it took no action if a person’s disability would pose a significant risk of self harm in
performing specific work to which the person was being assigned.
Statutory Definition:
Direct threat. The term "direct threat" means a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation. 42 USC
§12111(3).(Employment Definitions)
Statutory Qualification standards. The term "qualification standards" may include
a requirement that an individual shall not pose a direct threat to the health or
safety of other individuals in the workplace. 42 U.S.C. §12113(b) (Defenses)
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U.S. Equal Employment Opportunity Commission Title I regulations:
Definition of “Direct Threat”:
Direct Threat means a significant risk of substantial harm to the health or safety
of the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The determination that an individual poses a “direct threat” shall
be based on an individualized assessment of the individual's present ability to
safely perform the essential functions of the job. This assessment shall be based
on a reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective evidence. In determining
whether an individual would pose a direct threat, the factors to be considered
include:(1) The duration of the risk;(2) The nature and severity of the potential
harm;(3) The likelihood that the potential harm will occur; and(4) The imminence
of the potential harm.
29 C.F.R. 1630.2(r).
Defenses to a Charge of Discrimination:
Required in this part.(2) Direct threat as a qualification standard. The term
“qualification standard” may include a requirement that an individual shall not
pose a direct threat to the health or safety of the individual or others in the
workplace.
Explanatory Appendix.
The EEOC adopted Appendix A as part of its ADA rulemaking to provide additional interpretive
guidance to its regulations. Its discussion of “direct threat” is particularly instructive:
Section 1630.2(r)Direct Threat
An employer may require, as a qualification standard, that an individual not pose
a direct threat to the health or safety of himself/herself or others. Like any other
qualification standard, such a standard must apply to all applicants or employees
and not just to individuals with disabilities. If, however, an individual poses a
direct threat as a result of a disability, the employer must determine whether a
reasonable accommodation would either eliminate the risk or reduce it to an
acceptable level. If no accommodation exists that would either eliminate or reduce
the risk, the employer may refuse to hire an applicant or may discharge an
employee who poses a direct threat. An employer, however, is not permitted to
deny an employment opportunity to an individual with a disability merely because
of a slightly increased risk. The risk can only be considered when it poses a
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significant risk, i.e., high probability, of substantial harm; a speculative or remote
risk is insufficient. See Senate Report at 27; House Report Labor Report at 56-57;
House Judiciary Report at 45. Determining whether an individual poses a
significant risk of substantial harm to others must be made on a case by case
basis. The employer should identify the specific risk posed by the individual. For
individuals with mental or emotional disabilities, the employer must identify the
specific behavior on the part of the individual that would pose the direct threat.
For individuals with physical disabilities, the employer must identify the aspect of
the disability that would pose the direct threat. The employer should then consider
the four factors listed in part 1630:(1) The duration of the risk;(2) The nature and
severity of the potential harm;(3) The likelihood that the potential harm will
occur; and(4) The imminence of the potential harm. Such consideration must rely
on objective, factual evidence—not on subjective perceptions, irrational fears,
patronizing attitudes, or stereotypes—about the nature or effect of a particular
disability, or of disability generally. See Senate Report at 27; House Labor Report
at 56-57; House Judiciary Report at 45-46. See also Strathie v. Department of
Transportation, 716 F.2d 227 (3d Cir. 1983). Relevant evidence may include
input from the individual with a disability, the experience of the individual with a
disability in previous similar positions, and opinions of medical doctors,
rehabilitation counselors, or physical therapists who have expertise in the
disability involved and/or direct knowledge of the individual with the disability.
An employer is also permitted to require that an individual not pose a direct threat
of harm to his or her own safety or health. If performing the particular functions
of a job would result in a high probability of substantial harm to the individual,
the employer could reject or discharge the individual unless a reasonable
accommodation that would not cause an undue hardship would avert the harm.
For example, an employer would not be required to hire an individual, disabled by
narcolepsy, who frequently and unexpectedly loses consciousness for a carpentry
job the essential functions of which require the use of power saws and other
dangerous equipment, where no accommodation exists that will reduce or
eliminate the risk. The assessment that there exists a high probability of
substantial harm to the individual, like the assessment that there exists a high
probability of substantial harm to others, must be strictly based on valid medical
analyses and/or on other objective evidence. This determination must be based on
individualized factual data, using the factors discussed above, rather than on
stereotypic or patronizing assumptions and must consider potential reasonable
accommodations. Generalized fears about risks from the employment
environment, such as exacerbation of the disability caused by stress, cannot be
used by an employer to disqualify an individual with a disability. For example, a
law firm could not reject an applicant with a history of disabling mental illness
based on a generalized fear that the stress of trying to make partner might trigger
a relapse of the individual's mental illness. Nor can generalized fears about risks
to individuals with disabilities in the event of an evacuation or other emergency
be used by an employer to disqualify an individual with a disability. See Senate
Report at 56; House Labor Report at 73-74; House Judiciary Report at 45. See
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also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S.
Department of Labor, 694 F.2d 619 (9th Cir.1982).
ADA Title II (State and Local Governments)
No express statutory Provision
DOJ Regulations: 28 CFR Part 35
28 CFR Part 35
Definitions
Direct threat means a significant risk to the health or safety of others that cannot
be eliminated by a modification of policies, practices or procedures, or by the
provision of auxiliary aids or services as provided in §35.139.
28 CFR 35.104
Regulatory Direct Threat Limitation
§35.139 Direct threat
(a) This part does not require a public entity to permit an individual to participate
in or benefit from the services, programs, or activities of that public entity when
that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or
safety of others, a public entity must make an individualized assessment, based on
reasonable judgment that relies on current medical knowledge or on the best
available objective evidence, to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or procedures or the provision of
auxiliary aids or services will mitigate the risk.
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ADA Title III (Public Accommodations)
Statutory Provision Regarding Direct Threat:
Sec. 12182. Prohibition of discrimination by public accommodations
Specific construction. Nothing in this subchapter shall require an entity to permit
an individual to participate in or benefit from the goods, services, facilities,
privileges, advantages and accommodations of such entity where such individual
poses a direct threat to the health or safety of others. The term "direct threat"
means a significant risk to the health or safety of others that cannot be eliminated
by a modification of policies, practices, or procedures or by the provision of
auxiliary aids or services. 42 USC §12182(d)(3).
DOJ ADA Title III Public Accommodations Regulations: 28 CFR Part 36
§ 36.208
(a) This part does not require a public accommodation to permit an individual to
participate in or benefit from the goods, services, facilities, privileges, advantages
and accommodations of that public accommodation when that individual poses a
direct threat to the health or safety of others.
(b) Direct threat means a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices, or procedures, or by
the provision of auxiliary aids or services.
(c) In determining whether an individual poses a direct threat to the health or
safety of others, a public accommodation must make an individualized
assessment, based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence, to ascertain: the nature,
duration, and severity of the risk; the probability that the potential injury will
actually occur; and whether reasonable modifications of policies, practices, or
procedures will mitigate the risk.
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Fair Housing Amendments Act of 1988
Statutory Direct Threat Provision:
[A]n individual whose tenancy would constitute a direct threat to the health or
safety of other individuals or whose tenancy would result in substantial physical
damage to the property of others.” 42 U.S.C. § 3604(f)(9)
Air carriers Access Act
The Air CarriersAccess Act prohibits discrimination against a qualified passenger
with a disability by both domestic and foreign air carriers. 49 U.S. C. § 417055.
Although the Act itself makes no reference to “direct threat”, the U.S. Department of
Transportation’s implementing regulations apply the familiar standard as a defense in
circumstances where a passenger with a disability has a communicable contagious disease.:
§ 382.51 Communicable diseases.
(1) The carrier may take [certain] actions …with respect to an individual who has
a communicable disease or infection only if the individual’s condition poses a
direct threat to the health or safety of others.
(2) For purposes of this section, a direct threat means a significant risk to the
health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or services.
(3) In determining whether an individual poses a direct threat to the health or
safety of others, a carrier must make an individualized assessment, based on
reasonable judgment that relies on current medical knowledge or on the best
available objective evidence, to ascertain: the nature, duration, and severity of the
risk; that the potential harm to the health and safety of others will actually occur;
and whether reasonable modifications of policies, practices, or procedures will
mitigate the risk. 14 C.F.R. § 3812(b).
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III. Elements of the Direct Threat Defense Explained.
The phrase “significant risk” makes clear that some degree of risk is acceptable or, put another
way, that elimination of all risk is not an acceptable basis for excluding a person whose
disability, in a specific context might pose an insignificant risk. In Bragdon v. Abbott, 524 U.S.
624 (1998), the U.S. Supreme Court noted: “Because few, if any, activities in life are risk free,
Arline and the ADA do not ask whether a risk exists, but whether it is significant.” Bragdon,524
U.S.C. at649.
Probability of Occurrence and Nature and Severity of the risk
In order to determine whether the risk at issue is significant, two elements of the Arline
formulation, the nature and severity of the risk and the probability that it will occur, appear most
important. In Bragdon, the U.S. Supreme Court interpreted the direct threat provision in the
public accommodations title of the ADA. A dentist, Dr. Bragdon, had refused to treat a patient,
Ms. Abbott, when he learned she had asymptomatic HIV because he believed there was a
significant risk that he might contract the blood-born fatal disease if he did so. The Court
concluded that whether a significant risk exists must be determined from the perspective of the
person who refuses to perform the treatment and that such refusal must be based upon objective
facts or objective, scientific information available to him.Bragdon, 524 U.S. at649. medical
information. The Court was willing to defer to public health authorities such as the U. S. Public
Health Service, CDC, and the National Institutes of Health, unless Dr. Bragdon could offer
evidence that such reliance was unwarranted in his case. Bragdon, 524 U.S. at 350. The Court
remanded the case to the court of appeals because it perceived some uncertainty as to whether
the medical evidence might be contradictory. On remand, the federal court of appeals, relying on
the CDC’s mandate of “universal precautions” as a means of avoiding blood-born pathogens,
concluded that Dr. Bragdon’s contrary evidence was too speculative or too tangential to warrant
a trial. Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).
Bragdon can be read to support the proposition a very low probability that a harm will occur will
not support a finding of significant risk even if the nature and severity of the harm is very serious
Conversely, if the likelihood of the harm occurring is high but the harm is minimal, a direct
threat defense also should fail.
Nonetheless, when the issue is the possibility of contracting HIV/AIDS, many lower federal
courts have found that a significant risk is present because the severity of the harm is so large
even though the likelihood of transmission is small. Doe v. Wash. Univ., 780 F. Supp. 628, 634
(E.D. Mo.1991), and In re Application of Milton S. Hershey Med. Ctr., 595 A.2d 1290, 1296
(Pa. Super. Ct. 1991)); see also Bradley v. Univ. of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922,
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924 (5th Cir. 1993) ("A cognizable risk of permanent duration with lethal consequences suffices
to make a surgical technician with Bradley's responsibilities not 'otherwise qualified.'"); Estate of
Behringer v. Med. Ctr., 592 A.2d 1251, 1283 (N.J. Super. Ct. Law Div. 1991) ("Where the
ultimate harm is death, even the presence of a low risk of transmission justifies the adoption of a
policy which precludes invasive procedures when there is 'any' risk of transmission."). For other
examples, see Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir. 1995) ("We
hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot
be eliminated by reasonable accommodation.
Persons with mental disabilities, likewise, have not fared well when an employer has claimed
that a person’s mental illness or medications to treat it pose a significant risk. In Layser v.
Morrison, 935 F. Supp. 562 (E.D. Pa. 1995), an armed campus security officer suffering from
stress and depression, reported that he had dreamt of shooting his supervisor. Without
mentioning the Arline probability factor, the court ruled in favor of the defendant-college on the
ground that Layser’s dream along with statements from his psychologist and Layser’s own
contemporaneous statements were “sufficient submissions to illustrate the potential harm [that]
Layser posed was significant.” Id. At 569.in Shiplett v. National Railroad Passenger Corp.,
DOCKET NUMBER, 1999 U.S. App. LEXIS 14004 (6th Cir. 1999). a railroad engineer taking
the prescription drug Xanax to alleviate sleep disorders, anxiety, and panic attacks, posed a direct
threat to others. Id. The court deferred to the findings of Amtrak and the National
Transportation Safety Board and Federal Railway Administration that the use of Xanax posed
“too significant of a risk to the safety of the operation of a train to justify its use.”Id. This
conclusion was based on the potential side effects of Xanax which may include “drowsiness,
memory impairment, light-headedness, and impaired coordination.” Id at * 4.
On the other hand, a day care center was found to have violated the ADA when it terminated a
bus driver with a severe hearing loss based upon safety concerns without any empirical data in
the record regarding her having any driving problems. Rizzo v. Children’s World Learning
Centers, Inc., 173 F.3d 254, 257-58 (5th Cir. 1999). A retail store who fired a sales associate
because of a stress-related fainting disorder causing her to faint while working also was found
not to satisfy the direct threat defense. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir.
1999) And, a cruise ship entertainer with HIV won his ADA case because the court found the
cruise ship owner did not prove the existence of a direct threat. EEOC v. Dolphin Cruise Line,
945 F. Supp. 1550 (S.D. Fla. 1996).
In sum, while statistical probability of harm is supposed to be a critical element of the “direct
threat” test, many courts have ignored or downplayed this requirement where the ADA plaintiff
has a mental illness, or a serious contagious disease such as HIV. Plaintiffs with other
disabilities have found the “direct threat” defense to be an effective bar to discrimination based
upon unfounded fears, myths and stereotypes.
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Reasonable Accommodation
The terms “reasonable accommodation”, “reasonable modification to policies and procedures”
and “provision of auxiliary aids and services”, are used conceptually to include the varying
ways in which adjustments can be made in a particular situation to enable a person with a
disability to work and gain access to public and private services and goods. The requirement to
make such modifications is counter-balanced by a limitation variously referred to as “undue
Hardship”, “undue financial and administrative burdens” or a “fundamental alteration in the
nature of a program”, depending upon the legal context.